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Orten v. Orten8/26/2005
very requests. The trial court allowed Mr. Orten's counsel to withdraw from representation of Mr. Orten, and allowed Ms. Orten to present her case, in the absence of Mr. Orten and without counsel for Mr. Orten. On July 26, 2004, Mr. Orten's new attorney entered an appearance in the case.
Subsequently, an order was entered from the June 28, 2004 hearing which, inter alia, granted Ms. Orten a divorce, divided the marital estate, approved Ms. Orten's parenting plan, and awarded Ms. Orten alimony until her death or remarriage.
Mr. Orten filed a motion to alter or amend or, in the alternative, for a new trial. The trial court denied the motion finding that Mr. Orten was given "clear, complete and repeated" notice of the trial management proceeding and that Mr. Orten's nonappearance was consistent with his "obstructive and defiant behavior throughout the case and constitutes a further act of passive aggression."
At the hearing on Mr. Orten's motion, Mr. Orten testified that except for the second Trial Management Conference, he had attended every scheduled divorce event - the discovery deposition, the mediation session, and the first Trial Management Conference. He did not attend the second Trial Management Conference because he forgot it was set that day. He explained to the trial court that had he remembered the hearing was set, he would have attended; that had his lawyer reminded him of the hearing, he would have been there. For all his other required appearances, his lawyer had reminded him to be there before the scheduled date. He did not recall hearing any discussion about the Trial Management Conference at the deposition. As he was leaving the deposition, his lawyer told him he would call him to remind him of the date they were getting together, but he did not receive a call that weekend.
Mr. Orten admitted that he received the Trial Management Order regarding the June 28, 2004 conference, but that it was in "stuff boxed up to move" which remained in boxes after he moved from the marital residence. He did not have the conference date written on a calendar anywhere.
Mr. Orten's discovery deposition, which was admitted into evidence, does not reveal any discussions about the upcoming second Trial Management Conference. In the deposition, Mr. Orten testified that he had not actually received the interrogatories or request for documents but had reviewed them at his lawyer's office with his lawyer's secretary. The discovery requests are not in the record, but it appears from questions asked of Mr. Orten in his deposition that he was asked to provide cancelled checks, check registers, check stubs, deposit slips, debit or credit memoranda, transaction advances and bank statements for all bank accounts he had any involvement with for the last five years. Mr. Orten did not bring these records to the deposition as requested by wife's counsel. He told her he had previously told his attorney that he did not keep those records more than a couple of months. The records involved a joint account to which the wife had access and Mr. Orten's separate account. Later in the deposition, Mr. Orten agreed that he would provide eighteen months of bank statements. When asked for five years of monthly credit card statements for Chase, Bank of America and Discover statements, Mr. Orten said he would bring the current statements but, "I am not going to go back that many years . . . there is no need to." The deposition continued on other matters and at the conclusion, wife's counsel stated that the deposition of Mr. Orten was being suspended and would be finished at a later date. She stated "if we could have those documents we asked for by the next time, it would really be helpful." Th
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